LSP Association April 2010 Newsletter

Volume 17/Issue 2 April 2010

In This Issue

The Mechanics and Specifics of How LSPs Can Assist Clients in Monetizing Brownfields Tax Credits

The Things You Find During Spring Cleaning

The Promise and Pitfalls of Downgradient Property Status

CAM Revisions to Become Final

TECHNICAL PRACTICES CORNER...Update on CAM Revisions

Highlights from the February LSPA Membership Meeting

Highlights from the LSPA Innovative Technology Night

The Membrane Interface Probe as an Assessment Tool

Stepping Up
President's Message

by Andy Irwin

April 2010

You've got to think about 'big things' while you're doing small things, so that all the small things go in the right direction.
--Alvin Toffler

LSPA Starts Search for New Executive Director

After years of reminding us that he was only serving as an "interim" Executive Director, - a reminder which, of course, none of chose to take seriously - Wes Stimpson has told the Board that in July 2011 he will be stepping down as our Executive Director. Wes has been an indispensible mentor to me as President, and to each of you who has served in the leadership of the LSPA. Wes' guiding hand and wisdom have encouraged, prodded, poked, cajoled and sometimes even threatened us into action. Wes brought a unique perspective to his job as Executive Director, having been a member of the LSPA since its formation, a past Board member and President, and of course a well-respected LSP. There are few who have shown such dedication to the good purpose of the LSPA and have so clearly demonstrated by example what it means to be a professional.

The LSPA Leadership has started the process of evaluating what talents, skills and knowledge we are seeking for our future Executive Director, and will be developing an announcement seeking candidates for the Executive Director position. In the meantime, if you have any thoughts on what qualities, capabilities, and experience the new ED should have, please share them with me.

LSPA Strategic Plan

When the LSPA's "long range" Strategic Plan was being developed in 2007, 2010 seemed so far away. Well, the time has passed quickly, and here we are at the triennial anniversary of that planning effort.

The 2007 Strategic Plan not only changed the vision of the LSPA, but also resulted in the institution of an infrastructure and a planning framework which have allowed us to get things done on a non-crisis basis. Our thanks go to those who had the foresight to move us in that direction. Now, with the experience gained over the past three years, and with additional input from the recent membership survey, the LSPA Board is thinking about what we want to achieve in the next three to five years as we move to update the Strategic Plan. Additional input is welcomed, and you should contact Cole Worthy as the Board's point person for that effort.

Western Massachusetts

Kudos to Jim Kinch of the Member Services & Program Committee for taking the initiative to work with Phil Warner, Chair of the Western Committee, on pulling together two membership meetings in Holyoke (that's somewhere near San Francisco) this spring. It had been some time since that group had gotten together and now there appears to be more momentum on having future programs. We also want to remind all members that several of the LSPA Committees are opening conference lines for members to participate remotely when they can't make the drive to a meeting location. We continue to have new faces appearing at Committee meetings and getting engaged in what is going on.

Nominations to the LSP Board

Everyone thinks they are a qualified critic. And, while I have heard many discussions about the LSP Board that expressed dissatisfaction with the methods or duration of the disciplinary process and with the Board's decisions on issuing or denying new licenses, I have not heard many statements of appreciation for the individuals who volunteer their time and effort on the LSP Board to help keep the 21E program functioning. So let me acknowledge with great appreciation all those who have in served in the past and who currently serve on the LSP Board.

The LSP Board is one leg of the "three legged stool" that maintains the Professional Practice of Licensed Site Professionals. The Board's overall objective is to support a fair and equitable system for the regulation and enforcement of licensed individuals for the protection of the public. Its role as an active disciplinary authority gives critical public credibility to each of us holding the LSP license. MassDEP is the second leg of the stool, with the role of setting forth an orderly program of regulations and policies for the assessment, containment and removal of contaminants at Disposal Sites. The third leg is the members of the Practice who work with responsible parties to effectively and responsibly implement response actions.

There is currently one open position on the LSP Board, and several members are serving beyond their initial term. Appointments to the LSP Board are made by the Governor. The LSP Association has tasked our Past President's Council to identify a group of candidates who might be recommended to the Governor's Office for consideration as nominees to the LSP Board. If you might be interested in participating on the LSP Board I would encourage you to contact Past-Presidents Larry Feldman (also a former LSP Board Member) or Bill Betters.

LSP Association Scholarship Fund

In the last Newsletter I spoke about encouraging activities to promote the future of our Professional practice. There have been several people who have acted on that suggestion and I commend them for taking action. I also want to recognize Chuck Myette, Elliott Steinberg and Bill Betters for the years of contribution they have made to the LSPA not only as Past Presidents, but also in their roles in creating and operating the LSP Association Scholarship Fund, Inc., whose awards are intended to encourage young people to undertake studies toward careers in our field. Chuck, Elliott and Bill spend countless hours carefully reviewing applications and making the tough decisions regarding which of many deserving applicants will be awarded an LSPA scholarship. The LSPA looks forward to continuing its role as a major supporter of the Fund.

We must be the change we wish to see.
--M.K. Gandhi

The Mechanics and Specifics of How LSPs Can Assist Clients in Monetizing Brownfields Tax Credits
by Warren A. Kirshenbaum, Regulations Committee

This article is intended to serve as a follow-up to an article that appeared in the February 2010 Newsletter in which Ned Abelson, a prominent Boston environmental attorney, discussed the Brownfields Tax Credit (the "BTC"), and detailed how the BTC may be helpful for LSPs and their clients. However, further explanation of how the BTC may be fashioned to operate as an instrument of reimbursement for remediation expenses becomes necessary once a client concentrates on exploring its eligibility for the BTC. This month's article will therefore focus on how your clients can obtain and sell the BTC, thereby obtaining a cash reimbursement for a large part of their remediation expenses.

The Statutes
As you are aware, Massachusetts General Laws Chapter 21E ("21E") forces clients that own or operate a site that has environmental contamination to clean up the site, which is a risky, time consuming, and very expensive process. The law generally considers the current owner or operator as one of the parties responsible for the cleanup, but if the current owner or operator is an "eligible person," as defined in Chapter 206 of the Acts of 1998 (the "Brownfields Act"), under certain conditions he or she can be absolved of liability, and, once the cleanup is completed M.G.L. Chapter 63 §38Q (i.e. the BTC) provides for a tax credit of 25% (for a site closed with an AUL or with ROS status) or 50% (for a site closed without the need for an AUL) of the eligible costs incurred to clean up the site. The owner can then monetize the credits by transfer to a buyer.

The Economic Environment
We are in an era in which more and more sites being considered by developers will be Brownfields sites, and in order to continue to foster economic growth, the creation of jobs, increase tax revenue by stimulating the production of housing, commercial, and retail spaces for our workforce and citizens, the Commonwealth has a decided interest in ensuring that Brownfields sites be remediated, and the BTC is an effective tool to achieve that goal. Since the 1986 Internal Revenue Code first created tax credits for low income housing, such tax based incentives have been utilized very effectively by government to outsource to the private sector a public function and allow the development of a competitive marketplace to fashion an economic solution to a societal need. Since 1986, government has created historic tax credits, new markets tax credits, renewable energy tax credits, motion picture tax credits, and the BTC.

Brownfields Tax Credits ("BTC")
The BTC is available to certain taxpayers in Economically Distressed Areas who commence and diligently pursue a response action and maintain a permanent solution or remedy operation status in compliance with 21E and the Massachusetts Contingency Plan. The BTC Program acts as a direct or dollar-for-dollar credit against a taxpayer's tax liability to the Commonwealth of Massachusetts. The tax credits may be used all at once in a given tax year, or the buyer can use as much as they can in the current year and then carry excess credits over to a subsequent tax year for a period of five (5) years. Because the tax credits are certificated (as opposed to other tax credits where a buyer needs to be part of the ownership entity), they are attractive to Buyers and may be transferred by application to the Massachusetts Department of Revenue (the "DOR"). Once issued, each certificate has a unique number and is associated with the certificate holder by tax identification number, so upon transfer the certificate is redeemed and a new certificate is reissued to the buyer. The buyer attaches the certificate to its tax return and claims the credit, or a part of it, for 5 years.

BTC Procedure
Many times, once a cleanup has been achieved and the LSP's engagement is concluded, the client moves forward with their development of the site without consideration of the BTC. To effectively obtain and utilize the BTC, a client will have to engage one or more firms to help apply for and obtain the BTC, secure a buyer for the BTC, and execute the purchase transaction. The risk of the RAO being invalidated by DEP is effectively a risk of recapture of the tax credits by the Dept of Revenue. A buyer will usually require that the seller indemnify the Buyer from this in the purchase agreement. Depending on the dollars involved, bonding against recapture is an option, but usually the indemnification will be based upon the seller's financial ability. In terms of the risk of recapture from this type of recurrence, it is actually very low.

The Buyers
The market for the BTC is growing and stabilizing, and, being a certificated tax credit, the BTC is attractive to an increasing pool of buyers due to its dollar-for-dollar credit against Massachusetts taxes, low risk of recapture by the DOR (as the environmental solution precedes the BTC's issuance), and the statutory language that allows buyers to not be affiliated or connected with the project in any manner whatsoever.

Conclusion
Philosophically, the BTC is no different from other tax credits, but practically speaking, it is a "certificated" credit which makes transfer more efficient, the risk of recapture is low, and there are no ongoing compliance and accounting requirements, all of which are elements that are prevalent in, and serve to complicate, other types of tax credits. As LSPs working on remediating Brownfields sites, expanding your focus to advocate that your clients utilize and take advantage of the BTC amounts to the performance of an important industry service. You will be assisting in the development of an efficient marketplace, a market that can trade and monetize these credits, and you will be sustaining and assisting the development process which creates our employment opportunities, while allowing the field of environmental remediation to continue beyond LSP involvement, thereby raising the tide for all boats.

Warren Kirshenbaum is a principal at Tax Credits, LLC in Needham, MA. He can be reached at (781) 997-0220 or wkirshenbaum@comcast.net.

The Things You Find During Spring Cleaning...

by Lisa Alexander, MassDEP Bureau of Waste Site Cleanup

PASSING BY THE BULLETIN BOARD ON A SNOWY EVENING...

With all due respect to Robert Frost and "The Road Less Travelled"...

There it was. Uncovered while cleaning out files as we move to a "paperless" office, someone had posted on the bulletin board a newsletter from September 1987 - Environmental Profile: Massachusetts Department of Quality Engineering, "Special Report". There in black and white, was a collection of articles heralding "one of the most ambitious environmental agendas undertaken" and plans to meet the challenges of the "Question 4 amendments to the 1983 state Superfund law" to "accelerate... the identification, assessment and cleanup of hazardous waste sites in Massachusetts."

The newsletter described the "aggressive" two-year plan to find and root out hazardous waste disposal sites around the state. The plan included hiring 460 (460!) new staff - a veritable army of engineers, analysts, attorneys, toxicologists and administrative support staff across all programs in "DEQE" - as part of the legislative and popular mandate to clean up sites and spills. The new staff would represent an almost 50% increase to approximately 1500 agency-wide. The newsletter described DEQE plans to cope with the influx of new bodies: the 90 square feet of space per person, the "banks" of filing cabinets and equipment necessary to support their work.

The plan included the identification of "locations to be investigated" and the publications of site lists each year until they were all accounted for in the Agency databases... and cleaned up.

One article described the models being evaluated for the cleanup program. The primary model considered was a "private" one "where those responsible for the contamination do the work under DEQE oversight; [and] state contractors are utilized only where responsible parties will not agree to follow through." Two alternative models under consideration at the time were:

a "public" model, where the state or state contractors would conduct the cleanups, with PRPs subsequently paying the full cost after the fact; and
a "delegated" model, where work could be delegated to a local government entity or special regional agency.

Beginning in June, 1985, the Superfund Advisory Committee ("SAC") had begun meeting to "develop a process for answering a broad and sometimes perplexing set of questions about the degree and typeof response action required at any site in the Commonwealth." The 17 member body was composed of citizens representing environmental advocacy groups, municipal officials, public health specialists, and the business community. The SAC grappled with questions such as:

the roles of responsible parties during the site assessment and cleanup process;
the definition of a disposal site (as opposed to a "spill");
the operational definition for a "permanent solution", as opposed to a "temporary solution"; and
the consistent determination of what poses a "significant risk" at sites.

The newsletter also focused on the important role of public involvement and the use of Technical Assistance Grants ("TAGs"). So soon after news reports about Love Canal and our own experiences with Wells G&H in Woburn, it is not surprising that there was sometimes great fear and outrage when "sites" were discovered in a neighborhood. Citizens wanted to know - "Do I have anything to worry about with that excavation going on? Why are those people wearing white suits and masks? What's in those soil piles? Will I get sick? What about my neighbor with cancer?"

The Public Involvement Plan (PIP) process was created so that groups of concerned citizens could be kept advised of progress of work on sites and provide input. For PIP Sites, copies of reports were to be placed in accessible, public repositories (typically a town library). "Priority" sites typically had a DEQE staff person assigned to oversee the cleanup and meet with the PIP group periodically, but the TAG assistance was also made available so that groups could hire their own consultant to provide another, objective, qualified opinion on the work being done. Over time, 374 official "PIP" groups have been established, 102 which are still potentially active on "open" sites.

We know now that the 1987 vision of DEQE never fully materialized. In 2010, the entire MassDEP currently consists of fewer than 800 staff (down from a high of about 1100). These days, everyone is shedding file cabinets and bookshelves as we transition to a nearly paperless operation, and the One Winter Street office prepares to give up yet another floor.

Program innovations, technology, and budget cuts have transformed the way MassDEP operates. Our files and records are increasingly being made available on-line, so that anyone -- not just PIP groups or those motivated enough to trek to a Regional Office -- will soon have access to them, anytime, anywhere. Everything about our program -- regulations, cleanup standards, risk assessment tools, policies -- can also be found on-line.

The Bureau of Waste Site Cleanup has been in the vanguard of regulatory innovation. When the 1988 MCP became final, it already had provisions for cleanups to be conducted with less Department oversight- the "Waiver Program" did not eliminate the need to do work, but eliminated the need for obtaining approvals from the Department for every monitoring well installed or cubic yard of soil excavated. Yet soon after promulgating the 1988 MCP, it became clear that the number of sites coming into the process far exceeded the state resources required to oversee the work, laying the groundwork for the next (1993) incarnation of the MCP.

It is interesting to look back to the regulatory models under consideration in 1987, and reflect on the evolution of the MCP over the last twenty-three years. The Waste Site Cleanup program of today is not any of the "private", "public" or "delegated" models envisioned in 1987, but rather a public-private partnership that is flexible enough to address the wide range of sites and conditions that come into the MCP universe. The regulations provide a structure that balances flexibility and prescription, innovation and standardization, and assigns specific roles and responsibilities to the key participants in the cleanup process. Government has the responsibility to set protective and fair rules, ensure the requirements are met, and to conduct response actions itself, if necessary. Responsible parties have the obligation to conduct the assessment and cleanup of sites according to the promulgated rules. Licensed Site Professionals have the responsibility to oversee the response actions and attest that the work was conducted in compliance with the rules. Experience has shown that the cleanup program works best and most efficiently when the three main players (MassDEP, PRPs and LSPs) each fulfill their assigned roles. All three are necessary to ensure that the quality of environment in the Commonwealth is protected and the credibility of the program is maintained in the eyes of the public and the marketplace.

The path DEQE embarked on in September 1987, was the road less travelled - no other state in the country has adopted our collaborative public/private program to the same extent. Looking back down the road 23 years and 27,000 cleanups later, we can see how some of the changes and innovations made by MassDEP, the regulated community and the LSP community along the way have been highly successful, and how some have not worked as well as we had hoped... As we meet the challenges ahead, let's take stock in where we started and how far we've come, and what it takes to keep this program moving forward. It will take a lot of work and cooperation by all involved parties to tackle the many remaining challenges in the waste site cleanup world.

To view the original article, click here.

The Promise and Pitfalls of Downgradient Property Status

by Jeanine Grachuk, Esq., and James S. Young - Loss Prevention Committee

One of the LSPA Loss Prevention Committee's (LPC's) primary annual functions has been to review the previous year's Notices of Audit Findings (NOAFs) issued by MassDEP, in order to identify and characterize common pitfalls of LSP practice and issues that are the focus of MassDEP audit. One subject that has come to the fore is Downgradient Property Status (DPS), as described at 310 CMR 40.0180. This article will review the regulatory framework for DPS, highlight some of the pitfalls of preparing DPS Opinions, and explore some of the associated technical and legal gray areas that have become evident. The material in this article was also presented at the March 2010 monthly meeting of the LSPA.

The LPC asked MassDEP to share with us some statistical information regarding DPS submittals. Here are some statistics regarding the disposition of the 1002 DPS submittals which the Department received through the end of 2009:

          75      DPS submittals have been terminated
          9       DPS submittals have been invalidated
        143      DPS submittals relate to release tracking numbers (RTNs) that now have RAOs
        775      DPS submittals relate to RTNs for which DPS is still the current status

The 1002 DPS submittals equate to about 2.5% of the approximately 39,600 reported sites. The earliest DPSs were filed in 1995, and only 6% have been filed after July 1, 2008. Not surprisingly, DPSs are not evenly distributed among the regions. Instead, the fewest DPSs have been filed in the Western Region, and the majority have been filed in the Northeast Region. Below we identify the number and percent of DPSs filed in each region, and in parenthesis we identify the percentage of reported sites in that region. We are not certain the cause of the variability shown, especially in the Western Region.

      488 or 53%     Northeast Region MassDEP  (45.9% of all sites)
      218 or 24%     Southeast Region MassDEP  (22.6% of all sites)
      127 or 14%     Central Region MassDEP      (16.8% of all sites)
        85 or   9%     Western Region MassDEP    (14.8% of all sites)

Audits of DPS Submittals

According to MassDEP, all submitted DPS Opinions undergo a Level 1 audit. In one region, each DPS also gets a Level II audit (site inspection). Based on the results of the initial audit, a site may be flagged for a Level III audit. We have attached the MassDEP's Technical Screening Audit Form for DPS submittals.

During MassDEP's 2009 fiscal year (July 1, 2008 to June 30, 2009), MassDEP issued eight Notices of Audit Findings for reviews of DPS submittals for distinct downgradient properties. Some of the DPSs that were reviewed were quite old (from 1997 to 2007), and none was from 2008 or 2009. Here are highlights from MassDEP's review of these DPSs:

In two cases, MassDEP concluded the filing was consistent with the MCP.

In the remaining six cases, MassDEP issued Notices of Noncompliance and required additional field work. In these six, MassDEP identified the following types of noncompliance:
- Insufficient evaluation of potential on-site source (3);
- DPS criterion of "no affiliation" not met or potentially not met (2);
- Failure to include an evaluation of whether an Immediate Response Action (IRA) was necessary (1);
- DPS criterion of no exacerbation of release potentially not met (1);
- Requirement to maintain DPS not met because potential indoor air pathway not periodically assessed since DPS was filed in 1997 (1); and
- In submittal of termination of DPS on the basis that new monitoring did not identify contamination, failure to demonstrate criteria for DPS not met where not all monitoring wells were sampled (1).

While the number of DPSs reviewed in MassDEP's 2009 Fiscal Year is fairly small, it is clear from this evaluation that MassDEP considered some DPSs to be inadequately supported and to require additional work.

What is Downgradient Property Status?

During the initial implementation of the 1993 MCP, MassDEP was faced with a problem: what to do when owners and operators of properties reported releases on their properties originating from an upgradient or upstream location? These individuals would be unable, in many cases, to meet the requirements of the MCP because they would have no control over the source of contamination. MassDEP determined that those individuals should be allowed to take an MCP "off-ramp" if they could show that the contamination at their disposal sites was indeed coming from upgradient or upstream sources. The DPS provisions of the MCP, which essentially suspended MCP guidelines as described below, went into effect on February 24, 1995.According to the MassDEP's current fact sheet on DPS (www.mass.gov/dep/cleanup/laws/dpsfact.htm), "This suspended schedule allows time for the upgradient source to be discovered and brought into the MCP system, leading to a more comprehensive assessment and resolution of the contamination problem. The Downgradient Property Status also includes requirements and incentives for downgradient property owners to communicate with and provide reasonable access to upgradient property owners so they can meet their MCP cleanup requirements."

Until and unless terminated, a person "who establishes and maintains [DPS] shall not be subject to the subsequent deadlines for Tier Classification and Comprehensive Response Actions." (310 CMR 40.0184(1)). Annual compliance fees are also suspended, except for the year in which the DPS was filed (310 CMR 40.0184(2)).   It is also important to note that DPS does not eliminate other applicable MCP requirements, such as providing notice of a release to MassDEP, or performing Immediate Response Actions (310 CMR 40.0184(3)), as described further below.

In 1998, the Massachusetts legislature followed MassDEP's lead by creating an exemption from statutory liability for certain persons whose properties are impacted by an upgradient or upstream source if they meet the requirements of M.G.L. c. 21E, § 5D. This provision provides an exemption from liability if the upgradient or upstream sources is identified, and a defense to liability if the upgradient or upstream source is unknown. The difference in this provision between an exemption and a defense, in layman's terms, is that burden of proof shifts to the downgradient owner where the upgradient source is unknown.

The statutory exemption has similar prerequisites and ongoing requirements as regulatory DPS, but with some subtle and some clear differences. For example,

The regulatory DPS requires a submittal to the MassDEP and, if the initial and ongoing requirements of DPS are met, allows the property owner to suspend certain MCP response actions. The statutory liability exemption does not require any filing with the MassDEP; instead, it is asserted in litigation or pre-litigation negotiations if a third party claims the landowner is responsible for contamination.

A prerequisite for regulatory DPS is that the person asserting it is not affiliated with any person who owned the upgradient source property or caused the contamination (described in more detail below). This prerequisite does not apply to the statutory liability exemption. This difference between the statutory and regulatory prerequisites presents a difficult situation, and we suggest consultation with an attorney.

An ongoing requirement of regulatory DPS is that the person asserting it makes reasonable efforts to identify persons who may be responsible or potentially responsible for the release (if not already known). There is no similar requirement in the statute.

The remainder of this article discusses regulatory DPS only.

What are the Requirements for Filing a DPS Submittal?

Note that in describing these requirements and throughout this article, we use the shorthand "downgradient owner" to refer to the potentially responsible person who is making the filing. Such person may be a past or present owner or operator of the downgradient or downstream property. We use "downgradient property" to refer to property subject to the DPS, whether it is downgradient (with respect to groundwater flow) or downstream (with respect to surface water flow) of the source property.

Any past or present owner of a site may file DPS if contamination has come to be located there due to migration from an upstream or upgradient location on or with surface water or groundwater (310 CMR 40.0183(2)(b)), and if certain other prerequisites are met. As such, DPS applies only to downgradient or downstream locations. While the principles of transport with groundwater are straightforward, those associated with "surface water" are more equivocal. The MCP does not include a definition of upstream or downstream, and it defines surface water generally as "all waters other than groundwater within the jurisdiction of the Commonwealth, including, without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, wetlands, coastal waters, and vernal pools." (310 CMR 40.0006) However, in a Q&A from November 2007 [http://www.mass.gov/dep/cleanup/laws/mastqa.htm#dow], MassDEP explicitly states that overland flow (also called sheetwash) does not qualify as surface water as the term is used for qualification for DPS, because a specific migration pathway often cannot be identified, and so attributing contamination to a specific source is therefore difficult. Another pathway that does not qualify for DPS is transport by air (such as dust).

The additional prerequisites for qualifying for DPS are provided below:

The downgradient owner has notified MassDEP of the release on the downgradient property, if required by the MCP (310 CMR 40.0183(2)(a)).

No act of the downgradient owner has contributed to or exacerbated the release (310 CMR 40.0183(2)(c)). So, for example, the installation and pumping of an irrigation well on the downgradient property which impacts the migration of contamination would be inappropriate if it would cause the area of contamination to become larger; less clear would be issues such as dewatering a construction excavation on the downgradient property (see maintenance of DPS below).

In a November 2007 Q&A, MassDEP stated: "Examples of acts that may contribute to a release observed at a downgradient property include (i) disposal of [oil and/or hazardous material (OHM)] by the downgradient property owner onto the upgradient property; and (ii) discharge of OHM into a sewer or drain that extends onto the upgradient property, to the extent that such activities result in a release of OHM on the upgradient property." This last example indicates that activities on the downgradient property (i.e., discharge into a sewer pipe) could be having consequences on the upgradient property, perhaps without the downgradient owner's knowledge.

"Examples of acts that may worsen a release observed on a downgradient property include (i) installation and operation of irrigation wells, subsurface drains, or stormwater infiltration systems on the downgradient property that alter contaminant plume movement, exposures, exposure point concentrations, and/or remedial feasibility; and (ii) grading or building construction activities that create new contaminant migration or exposure pathways."

The downgradient owner is not, and was not at any time, affiliated with any other person
- (i) who owned or operated the source property; or
- (ii) caused such release; or
- (iii) is potentially liable for disposal site through any direct or indirect contractual, corporate or financial relationship, other than that established by an instrument:
  - creating such person's interest in the downgradient property; or
  - wholly unrelated to the disposal site and which would not otherwise render such person potentially liable as a result of the relationship.

(310 CMR 40.0183(2)(d); November 2007 Q&A). It is important to note that merely acquiring a property interest in the downgradient property from a person who also happens to own the upgradient source property does not make the downgradient owner "affiliated" with the upgradient owner and therefore disqualified from filing DPS. Equally importantly, having some other type of relationship with the upgradient owner that is notrelated to the ownership of the disposal site would not disqualify the downgradient owner. Prior to filing for DPS, it is important to identify what relationships exist between the downgradient owner and the identified potential source properties, their owners and operators, and in some cases past owners, to evaluate this criterion.

To the extent the downgradient owner has performed response actions at the disposal site, such response actions comply with the MCP (310 CMR 40.0183(2)(e)).

Of course, in addition to meeting the prerequisites for DPS, an LSP must collect and evaluate sufficient data to develop an LSP Opinion that DPS is applicable. The MCP sets forth the performance standard on which the DPS filing must be based at 310 CMR 40.1083(4): "A [DPS] Opinion shall be based on investigative and assessment actions of sufficient scope and level of effort to conclude that the criteria in 310 CMR 40.0183(2)(b) have been met." In the Opinion, the LSP must explain and document the technical case for his or her conclusions, and must specifically include an evaluation of (a) downgradient property boundaries; (b) disposal site boundaries (to the extent defined); (c) any known releases at the disposal site; (d) hydrogeologic conditions such as (for downgradient properties) direction of groundwater flow and local transport based on field data; and (e) whether an IRA is needed. (310 CMR 40.0183(4)).

Again, while the MCP contains no prescriptive minimum thresholds for required DPS data or information, the MassDEP's November 2007 Q&A contains four fairly specific stipulations for DPS support where transport is by groundwater:

Groundwater elevation measurements in at least three (triangulated) groundwater monitoring wells have provided clear evidence of groundwater flow direction toward the downgradient property [from the alleged source], which is unlikely to vary with seasonal or tidal influences;

The hydraulic gradient is greater than 0.003 feet/foot (this is because where the water table is sufficiently flat, the direction of flow is more likely to vary with time or as the result of significant precipitation events);

The groundwater table elevation is below the invert elevation of subsurface utilities and/or structures (utility corridors below the water table may locally divert flow in different directions than overall groundwater flow); and

Chemical testing of at least three (triangulated) groundwater monitoring wells in the same geologic unit to demonstrate a clear concentration gradient for the OHM of interest, with the highest levels at or near the upgradient property line.

The Q&A also explains that "[w]hile it is possible to successfully demonstrate DPS for properties without one or more of the characteristics listed above, such cases will necessarily require more effort, discussion, and rationale, and the development and presentation of an adequate Conceptual Site Model."

The Q&A also states that the bar will be higher for sites at which there are potential sources of the same contaminants that are attributed to the upgradient site, or where the same contaminants are present in the vadose zone of the downgradient property. On this point, MassDEP has stated that in order to conclude that the contamination comes from an upgradient source at a property with on-site sources, "it is necessary to 'rule-out' current/prior potential on-site sources. For this reason, a DPS submittal should include the history of the downgradient property including: owner/operator and operations history, release history, oil and hazardous material use/storage/disposal history, and an environmental permits and compliance history." (MassDEP's Audit Helpful Hints, February 1999).

In cases such as this, demonstrating a concentration gradient can be a key component of a DPS Opinion. If contaminant concentrations are higher at the upgradient boundary of the downgradient property than further downgradient (on the downgradient property), a source on the upgradient property is more plausible. In addition, it may be possible to differentiate two plumes of the same type of contamination (such as fuel oil) on the basis of different ratios of various constituents.

The DPS opinion must also include the results of chemical analyses, as well as a plan showing:

(a) downgradient property boundaries;

(b) disposal site boundaries (to the extent known);

(c) locations of known or suspected sources. It is not required, however, that the specific upgradient source be identified in order to qualify for DPS. This was once true (1995 MCP) for migration via surface water, but a subsequent regulation change eliminated that requirement for filing a DPS. Remember, too, that identifying the source provides greater liability protection (as discussed above) than not doing so;

(d) the direction of groundwater or surface water flow; and

(e) sampling locations.

Filing for DPS also requires the payment of a fee and provision of notice to the upgradient and downgradient abutters, and to any owner and operator of a known or suspected source property.

What Are the Ongoing Requirements for Maintenance of DPS?

The regulations require that the downgradient owner must meet the following ongoing requirements in order to maintain DPS:

The downgradient owner must not contribute to or exacerbate the release (310 CMR 40.0185(1)(a)).

The downgradient owner must provide "reasonable access" to the MassDEP, and to persons who are conducting response actions, including characterization and/or remediation of the release on the downgradient property (310 CMR 40.0185(1)(b)). LSPs have sometimes reported that the downgradient owner stipulated reimbursement by the upgradient owner for the downgradient owner's LSP and/or attorney as a condition for granting access to the downgradient property. It is an open question as to whether MassDEP would consider this "reasonable" access; this would most likely depend upon the specifics of a particular situation.

The downgradient owner must take "reasonable steps" to prevent exposure of human and environmental receptors to the impacts on the downgradient property (310 CMR 40.0185(1)(c)). As with the stipulation immediately above, it is unclear what steps are "unreasonable" and therefore not required. Also, as noted elsewhere in this article, MassDEP has on at least one occasion issued a Notice of Noncompliance for the failure to conduct indoor air testing to ensure worker safety at a site that was the subject of a DPS for VOCs in groundwater.

To the extent the downgradient owner performs response actions at the disposal site, such response actions must comply with the MCP (310 CMR 40.0185(1)(d)).

The downgradient owner must make "reasonable efforts to identify persons who may be responsible or potentially responsible for the release and [provide] the notice required by 310 CMR 40.0183(5) to such persons (310 CMR 40.0185(1)(e)).

The downgradient owner must avoid engaging in activities that would impede or prevent reasonably likely future response actions (310 CMR 40.0185(1)(f)).

This provision has caused some LSPs to question whether it is possible to redevelop a downgradient property before assessment/remediation of an upgradient release has been completed. However, according to an MCP Q&A from November 2007, "This requirement does not prevent development of the downgradient property, and in most cases development activities may occur on the downgradient property in a manner that will not conflict with this requirement or exacerbate the plume. However, it is imperative that this requirement be considered when planning development activities on the downgradient property, and modifications to such activities may be necessary. In cases where a proposed structure could prevent or impede future response actions, it is possible to conduct a focused assessment and remedial program within the footprint of the proposed structure, in accordance with the provisions of 310 CMR 40.0442(3). Ideally, development plans should be coordinated between the owners and operators of the downgradient property and person(s) conducting response actions at the upgradient disposal site source property."

While it is not clear to us if MassDEP has ever exercised this authority, MassDEP may require the downgradient owner to develop and implement "a management plan for the property in order to prevent, eliminate, or minimize danger to health, safety, public welfare and/or the environment" (310 CMR 40.0185(2)).

While not technically a requirement of maintaining DPS, the downgradient owner does have an ongoing obligation to implement any IRA required by the release conditions because filing a DPS does not suspend this MCP requirement. (310 CMR 40.0184).

We are not certain that most LSPs have a practice of evaluating previously-filed DPSs to verify that the ongoing obligations have been met by the downgradient owner. However, as described above, one of the NOAFs reviewed by the LPC included a Notice of Noncompliance for failure to maintain DPS because the owner had not periodically assessed potential exposures to employees from groundwater with levels of VOCs exceeding the Method 1 GW-2 standard. The DPS, which had been filed in 1997, was not invalidated by MassDEP; instead, the owner was given time to conduct indoor air sampling to ensure worker safety.

How is DPS Transferred?

Because DPS applies to the owner or operator of the property, rather than with the property itself, it is not automatically applicable to a subsequent owner or operator of that property. When a property subject to DPS is transferred, an evaluation must be made of the new owner or operator's eligibility for DPS if the new entity seeks DPS status.

In evaluating the new owner/operator's eligibility, it is necessary to first establish whether the new owner/operator meets the requirements of 310 CMR 40.0183 as described above. In doing so, it is important to focus on whether the new owner/operator is or has ever been affiliated with any other person who owned or operated the property, caused the release, or is potentially liable for the release.

If the new owner/operator is eligible for DPS, transferring that status under the MCP may be done by filing a "modification" of the DPS with MassDEP, with the effect that the person submitting the modification will have DPS unless and until that status is terminated. This has been described by MassDEP as follows: "The effect of the modification is to add the new owner as a party who has DPS. The former owner also retains DPS, which is why the process is considered a modification rather than a transfer." (November 2007 Q&A). Importantly, modification requires the following:

Written consent from the person who submitted the existing DPS (310 CMR 40.0187(b)).

A certification by the person whose consent is required for the modification that he or she has maintained DPS status consistent with the MCP (310 CMR 40.0187(c)).

It is clear from these requirements that the subsequent owner/operator cannot submit the modification without assistance from the current or prior DPS holder. Therefore, these requirements should be brought to the attention of the subsequent owner/operator, if possible, during the development of the purchase and sale agreement, lease, and related transaction documents to reduce the possibility of problems in obtaining this assistance.

There may be circumstances in which it is not possible to obtain the cooperation of the entity that previously submitted the DPS (e.g., death, foreclosure). In these circumstances, MassDEP has indicated that the new owner may submit a new DPS submittal (November 2007 Q&A). There may be times when a prior owner/operator has lost DPS status (for example, through the operation of an irrigation well which impacts contaminant migration), and therefore cannot provide the necessary certification. Since the status applies to the person and not the property, we believe that it should be possible to make a new DPS submittal where the new owner independently meets the requirements of DPS (and, in this example, the irrigation well is no longer being used).

Why and When Terminate DPS?

The MCP requires an individual who has DPS to terminate DPS within 60 days of gaining knowledge that the requirements for DPS are no longer being met (310 CMR 40.0186(2)). The MCP also allows an individual to terminate DPS voluntarily (310 CMR 40.0186(3)).

The MCP also states that DPS "shall terminate" if information indicates that the requirements for DPS are no longer met, if the person with DPS status fails to maintain the status, or if the person notifies MassDEP that it intends to conduct comprehensive response actions (310 CMR 40.0186(1)). Finally, DPS "shall terminate" if MassDEP establishes Interim Deadlines (310 CMR 40.0186(1)(d)). It is not clear from the MCP under what circumstances MassDEP would establish such a deadline, but one presumes that the Department would not do so unless it had concluded that DPS no longer applied.

Upon termination of DPS, the MCP deadlines for Tier Classification and Comprehensive Response Actions will spring back to life and annual compliance fees will again be assessed.

Is DPS a Prelude to Battle?

By filing DPS, your client is essentially saying three things: (1) one property has been contaminated by another (and in many cases the source property is identified); (2) response actions are required under the MCP; and (3) your client will not be undertaking those response actions. These are fighting words which, as described above, must be provided directly to every abutter and anyone else who owns property that may be the source of the contamination.

Yet, we have located no reported court case in which an upgradient owner and a downgradient owner fight over who is responsible for the contamination. This may be because M.G.L. c. 21E requires parties to negotiate before going to court and provides significant incentives to settlement in addition to ordinary litigation costs. We suspect there are in fact many such negotiations.

Another possibility is that the downgradient owner considers the issue resolved by filing the DPS, and the upgradient owner simply waits to see if anyone will "make" him or her address it. This leads to the question of the obligation of a property owner who receives a DPS identifying his or her property as the source of the contamination. While the MCP does not specify any obligation in these circumstances, it is possible that the DPS will provide sufficient information to give the potential source property owner "knowledge" of a release, bringing that upgradient owner into the MCP. In other cases, the DPS will not provide sufficient information to give the potential source property owner "knowledge" of a release, and the upgradient owner will face a choice of whether to further investigate its claims.

The LPC asked MassDEP how it addresses potential source properties identified in DPS Opinions. MassDEP indicated that its response depends primarily on two factors: the strength of the information suggesting that the identified property is the source, and whether the potential upgradient source property is or has ever been an MCP site. According to MassDEP, when the data is weak or equivocal as to the upgradient source, and the potential upgradient source is not in an identified MCP site, MassDEP may issue a Request For Information (RFI) to the upgradient owner, or may undertake field work (e.g., the installation of groundwater monitoring wells) on its own. The likelihood that MassDEP will undertake field work typically will be a function of the seriousness of the conditions identified and the availability of MassDEP staff and resources.

Where the link is strong, MassDEP's actions depend in part on whether the upgradient property is or has ever been an MCP site. Alleged upgradient sites fall into three categories:

Active sites. Upgradient sites that have been reported to MassDEP and are not yet closed are assumed to be moving toward addressing the impacts identified in the DPS Opinion, unless a review of the site status determines that it is out of compliance, in which case normal enforcement actions commence, with issuance of a Notice of Noncompliance.

Closed sites. In the event that a site for which a Response Action Outcome Statement (RAO) has been filed is identified as an upgradient source, MassDEP may initiate a Level III audit of the RAO, which may lead to issuance of an NOAF with a Notice of Noncompliance.

Locations that have never been an MCP site. If the data supporting a DPS Opinion are reliable, an NOR may be issued to the upgradient owner.

MassDEP further stated that it "becomes involved (either through enforcement [or] directly) in determining the source in every case where [imminent hazard] conditions are found on the DPS property."

As part of a June 7, 2006 NERO Night presentation, MassDEP offered the following rules of thumb for DPS Opinions:

Be sure to show groundwater flow direction and provide gradient;

Provide a complete history of OHM use at the site;

Provide a Conceptual Site Model;

Directly address applicability of DPS when there is vadose zone contamination on the downgradient property;

More/better data are required at complicated sites (complex history, hydrogeology, multiple sources, co-mingled plumes, etc.)

Based on our experience and the LPC's review of MassDEP NOAFs, the authors would add the following suggestions:

Be conservative in any effort to expand the meaning of regulatory definitions (for instance, of 'surface water');

Bear in mind the need to make a diligent effort to identify the upgradient source in order to maintain DPS;

Be aware of the potential on-going commitments (such as monitoring of site conditions) required for maintenance of DPS.

To view the DEP Bureau of Waste Site Cleanup Checklist, click here.

CAM Revisions to Become Final

by Elizabeth Callahan, MassDEP Bureau of Waste Site Cleanup

MassDEP expects to have the final revisions to the CAM protocols posted on or around March 31, 2010. At that time, PRPs/LSPs/labs will be able to use the new protocols in support of MCP work. The MassDEP will use notices to the website as well as notification to the BWSC email list to inform when the final revisions are to be effective. Use of the new protocols will not be required, however, to obtain presumptive certainty for analytical work until July 1, 2010.

Please note that these changes to CAM do not mean that past data will not have the benefit of presumptive certainty. It is the agency's position that data generated in compliance with CAM protocols in effect at the time of sample analysis is, by definition, CAM compliant.  There is no need to provide additional justification to maintain this status.

However, data usability is another matter. Not all data with presumptive certainty status are usable at all sites for all purposes.  Fortunately, for the most part, the CAM 2010 protocol changes are not significant enough to affect usability determinations or require new sampling and analysis to support MCP decisions and RAOs.

For the vast majority of sites and data sets, data that was deemed usable under the previous CAM protocols will be usable under the revised CAM protocols. The one exception may be the Cr+6 analysis of soil/sediment samples because of the need to collect these samples in jars separate from other analytical parameters to ensure the integrity of sample up until the digestion (i.e., jar not opened until sample being removed for Cr+6 digestion).

A limited transition period makes sense, primarily to allow time for laboratories and LSPs to update systems and protocols, and to provide additional time for a data usability assessment at those relatively few sites where cleanup is driven by Cr+6.

TECHNICAL PRACTICES CORNER:

Update on CAM Revisions

by Jim Occhialini, Technical Practices Committee

The Compendium of Analytical Methods (CAM) has been revised, and a review draft is now available for public comment. These revisions are based on feedback the Department has received since the CAM's inception in 2004, and they were implemented to ensure that there is consistency across protocols, that CAM requirements are clearly specified, and that all Analytical Notes added since 2004 have been incorporated. Three additional methods were also added to the CAM (for perchlorate, TO-15 and the MassDEP APH method), while Method 8021, VOCs by GC-PID/ELCD, was removed from the CAM because it wasn't being utilized. In addition, significant revisions have been made to the overall CAM document to more clearly articulate both existing and new CAM requirements.

The most obvious change is that the revised CAM certification page has been expanded from 6 to 9 questions. The questions are now much more specific, clearly stating the requirement to be addressed. Another significant change is the establishment of CAM reporting limits for each method, which represent a limit of detection that should be able to be achieved for samples not requiring dilution due to high target compound concentrations or excessive matrix interference.

There are several revisions to the inorganics methods that LSPs need to be aware of. The existing inorganic CAM methods do not have a sample matrix-specific measure of accuracy similar to the role the surrogate spike serves with organics methods. To correct this deficiency, which is only applicable to soils, LSPs are required to specify one of the samples they submit for metals or cyanide analysis to be used for a matrix spike at a frequency of 1 per 20 samples. This 1 per 20 frequency can be spread over multiple sample submissions. It should be noted that the hexavalent chromium method has been revised to require a separate container to be submitted, filled to the top and undisturbed until analysis to best preserve the redox conditions present at the time of sampling. Also, samples submitted for hexavalent chromium must be analyzed for pH and ORP within 24 hours. This will require those LSPs utilizing a strategy of analyzing total chromium first and then only analyzing hexavalent chromium based on the total results to include an extra container and analyze for pH and ORP, even if hexavalent chromium is subsequently not analyzed. In addition, both a soluble and insoluble matrix spike must be performed for hexavalent chromium.

In summary, all of the CAM protocols have been revised to improve the quality of the information they provide, to make the analytical requirements clear to the laboratories, and to make compliance by the laboratory more transparent to the data user. The revised methods are posted on DEP's website and should become final pending the input received during the formal comment period.